Congress is as close as it’s been in a while to reconsidering U.S. war policy

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The current AUMF has been used to justify everything from drone strikes on terrorist compounds in Yemen to missile strikes against Bashar al-Assad’s regime in Syria.

With little fanfare and even less warning, Congress on Thursday took a step forward in tackling something it has failed to touch over the last 16 years: the legal basis for ongoing U.S. military action abroad.

That move would force Congress to debate and consider a new legal foundation for U.S. military efforts, from drone strikes on terrorist compounds in Yemen to missile strikes against Bashar al-Assad’s regime in Syria — whether that’s a new authorization of military force, or even a declaration of war.

Dissatisfaction has long simmered on both sides of the aisle over using the post-9/11 AUMF to justify ongoing U.S. military activity — especially without any open congressional debate on it.

The fate of the provision is uncertain, and there’s more than one way that GOP leadership could strike it. Whatever happens, it represents a new frontier in Congress’ debates about presidential authority to wage war, and Minnesota members of Congress on both sides of the aisle are broadly supportive of the measure.

That would give Congress the better part of a year to debate, consider, and adopt a new legal framework for U.S. military action overseas.

For most of its history, when it wanted to take military action, Congress would pass a declaration of war, which it has done 11 times against nine countries in U.S. history. Since World War II, Congress has not passed a full declaration of war; instead, it has enacted AUMFs, which provided the basis for the Vietnam War and the First Gulf War.

In Korea, Bosnia, and Panama, U.S. presidents used legislation giving them authority to intervene militarily on the basis of United Nations Security Council resolutions.

The most recent AUMF was passed in the aftermath of September 11, and it has justified all U.S. military activity overseas ever since, with the exception of the Iraq War, which Congress authorized with a separate resolution.

The text of the document is simple: it authorizes the president to “use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks that occurred in September 11, 2001, or harbored such organizations or persons.”

The text states that this authority is granted in order to prevent future acts of terrorism in the U.S. by these entities, and the document specifies out no expiration date for this justification for military action.

Most immediately, the AUMF authorized the beginning of the War on Terror, as the U.S. took military action against al-Qaeda and the Taliban in several countries. (Lee, the sponsor of the amendment, is famous as being the House’s lone vote against that AUMF, which passed three days after 9/11.)

But the 9/11 AUMF’s flexibility continued to be of use to commanders-in-chief: it has been used to justify strikes against targets in a group of countries, including Libya, Iraq, Syria, Afghanistan, and Pakistan. It has also been used as a justification for action against the Islamic State, a current rival and former ally of al Qaeda, though ISIS itself came into existence long after 9/11.

In 2013, Barack Obama did make some effort to seek authorization for military action against Syria for its use of chemical weapons. A resolution advanced out of the Senate Foreign Relations committee, but it failed to gain broader support in Congress, and Obama declined to take action against Syria without it.

Bipartisan support for a new basis for war

When Lee’s amendment was approved by voice vote in the Defense Appropriations Subcommittee on Thursday, some members were so happy that they reportedly clapped and cheered. It represents the first time since the 9/11 AUMF passage that this kind of language has advanced in a meaningful way in the legislative process.

Democratic and Republican members of Congress have gradually grown dissatisfied with the past three presidential administrations, from George W. Bush to Obama and now Donald Trump, using the 9/11 AUMF as justification for new military action.

Historically, the enthusiasm for a new AUMF or a declaration of war has been with anti-war progressives and constitutional conservatives, both wary of executive overreach. But recently, as U.S. targets have shifted to include ISIS and now the Syrian military, more voices on both sides have expressed a desire for at least a debate on a new set of parameters for U.S. military action.

Lee has been a tough and persistent advocate for this position for years; Politico reports that this work ultimately won over some of her colleagues, including the Appropriations Chair, New Jersey GOP Rep. Rodney Frelinghuysen, to her side in the unexpected vote to advance the measure. Democratic and Republican aides alike expressed real surprise that Thursday’s news happened at all.

Fourth District Rep. Betty McCollum, who sits on this committee, said in a statement that she supported it “because it is long past time for Congress to have a debate on this critical issue. After 16 years, we owe it to the men and women serving in the military, and to all Americans, to have a full and complete discussion and a floor vote on a new authorization.”

First District Rep. Tim Walz, the top Democrat on the House Veterans’ panel, agreed, saying in a statement he fully supports the amendment to “force congressional debate on our most solemn constitutional duty,” adding that a debate and vote on a new AUMF should occur “as soon as possible.”

Minnesota’s Republicans all joined Democrats in hailing Thursday’s developments. Second District Rep. Jason Lewis praised it most strongly. “It’s the role of Congress to give the executive authorization to use military force,” he said, arguing the current AUMF “should not be considered a perpetual grant of war powers.”

“America’s sons and daughters should not be sent into harm’s way without serious debate by those chosen to represent them,” Lewis said.

Third District Rep. Erik Paulsen said the AUMF discussion is “definitely warranted” and that he looks forward to the debate.

Emmer told MinnPost that he hadn’t studied the amendment in full yet, but welcomed the discussion. “There shouldn’t be a carte blanche… there’s a reason why we have Congress,” he said.

Plenty of obstacles ahead

Though the bipartisan progress on the AUMF amendment is clear, there are still plenty of ways that it could fail.

There are important holdouts who could exercise their power to kill the amendment. Rep. Kay Granger, a Texas Republican, chairs the Defense Appropriations subcommittee, and she opposes it on the grounds that it would cripple U.S. efforts to combat terrorism.

The House Rules Committee could strike the amendment before the defense spending bill gets to the floor for a vote by deeming it “out of order,” if the GOP majority, which wields the rules panel’s power, decides to.

If the language does make it to the House floor, a lawmaker could file an amendment to strike Lee’s amendment, and members could vote in favor of that, or against the entire spending bill if there was enough support to maintain the current AUMF without any debate.

If the bill does pass with the AUMF language, the Senate would need to agree to it, too — another potential way it could fail, though bipartisan support exists in the upper chamber for a new AUMF. President Donald Trump could also veto the bill on those grounds, though the stakes would be high, since the amendment is attached to legislation that funds the entire U.S. military and Department of Defense.

According to Emmer, the will to have the AUMF debate is growing within the GOP. “It’s a discussion that has actually started within the general conference about what is the right way to do this,” he said. “It’s time to have the discussion.”

Fifth District Rep. Keith Ellison was more cynical. In a statement, he ventured that Republicans might be allowing the debate now because “they’re finally coming to terms with the fact that their president is an immature, disinterested, petulant child… even the most ideological among the GOP realize that giving a man like that the authority to make war when and where he pleases without congressional oversight is a bad idea.”

At any rate, with Lee’s amendment part of must-pass defense spending legislation, someone will have to take action to strip it. Even if that happens, it’ll be further than the proponents for a new basis for U.S. war have gotten in over a decade.